Opinion
No. 35135-8-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-01720-3, John R. Hickman, J., entered June 16, 2006.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Ebony Johnson appeals her conviction of second degree assault while armed with a deadly weapon, contending that evidentiary rulings, prosecutorial misconduct, and her attorney's ineffectiveness prevented her from presenting a claim of self-defense; that additional prosecutorial misconduct occurred during closing argument; and that her attorney was ineffective in proposing an erroneous self-defense instruction. She raises additional issues in a pro se statement of additional grounds. Finding no reversible error, we affirm.
FACTS
One night in April 2005, Ebony Johnson and her boyfriend, Parrish Gale, were arguing near Johnson's parked car. Gale had Johnson's purse and when she demanded it back, Gale dropped it, scattering the contents on the ground. Gale then walked away and Johnson followed in the car. A few minutes later, Gale walked back to the purse, with Johnson again following in her car. As he was bending over to pick up the purse's contents, Johnson got out of the car, approached Gale from behind, and stabbed him in the back. Johnson then returned to her car and drove away.
Four people witnessed the incident. None recalled seeing or hearing Gale do anything to provoke the stabbing other than argue with Johnson, apparently about the purse.
Johnson returned to the area a few minutes after police arrived and admitted that she had stabbed Gale. She explained to an officer that she and Gale had dated for about five years; that Gale used drugs, including PCP, embalming fluid, and cocaine; that she and Gale had argued about him taking her car without permission that day to buy drugs; and that he was high at the time. Johnson said that before the stabbing, Gale called her a bitch and played with the car's transmission; Gale took her car keys and refused to give them back; he spat on her and took her purse, dumping the contents on the ground; and she stabbed Gale with a knife she keeps in her car for protection. She denied trying to kill Gale.
The knife's eight-inch blade penetrated Gale's lower back three to four inches and lacerated his liver — a possibly life-threatening wound. A toxicology report showed that Gale had cocaine, amphetamines, marijuana, and PCP in his system.
The State charged Johnson with first degree assault while armed with a deadly weapon. Before trial, the State moved to exclude evidence of most of Gale's criminal history, including four domestic violence offenses that did not involve Johnson. The State also sought to exclude evidence that Gale took Johnson's car on the day of the stabbing to buy drugs and that she was the victim of prior uncharged domestic violence by him.
The defense, claiming that Johnson acted in self-defense, argued that it should be able to impeach Gale with evidence of his prior convictions and that his history of abusing Johnson and using drugs was admissible to explain why she stabbed him.
The trial court ruled that two of Gale's prior convictions (possession of stolen property and theft) were admissible to impeach him if he testified and that evidence of his drug use on the day of the stabbing was admissible. The court excluded the rest of Gale's criminal history and any other misconduct until it ruled otherwise in a hearing outside the presence of the jury.
The defense called Gale, who testified that he had been dating Johnson off and on for almost six years and that he sometimes dated five other women at the same time. "I do what I want and either — I told her either accept it or reject it. If she don't want to mess with me, don't mess with me. She'll be mad and she'll leave me alone or I'll walk out, and then she'll come get me like an hour or two later." 5 Report of Proceedings (RP) at 66-67. He said that dating other women, not returning Johnson's phone calls, and borrowing her car without returning it when promised were sources of conflict within their relationship. He admitted entering her house through a window one time, adding "[y]ou can call it breaking in." 5 RP at 80. Gale had never had a job, and Johnson bought him things, like pagers and cell phones. According to Gale, he "never had to take nothing" from Johnson because if she did not give him what he wanted, he would get mad and get it. 5 RP at 66. "She would try to make me happy all the time." 5 RP at 71. When he was in jail, Johnson put money on his books and his friends' books and visited him. He mentioned being in jail several times and testified that Johnson bailed him out one week before she stabbed him.
Gale testified that he borrowed Johnson's car on the day of the stabbing. He intended to return it after midnight but brought the car back early because Johnson called him repeatedly about returning it and about some letters she had found. He testified that he had smoked marijuana earlier that day but had not consumed any "sherm," which he often smokes. "I do drugs every day so there's probably any drug in my system because it don't go out [of] your system overnight." 5 RP at 97.
"Sherm" is a cigarette dipped in embalming fluid, cocaine, and marijuana.
When Gale returned Johnson's car, he told her he was ending their relationship. He then packed his belongings and had her drive him to cash a check and drop off his clothes. He and Johnson argued about the letters and other issues as she drove, and he hopped out at a light to get away. Even though Johnson tried to hit him with the car, he got back inside and continued the argument. Johnson apologized and threw her purse at him; when he got out of the car and bent down to get it, she stabbed him. He denied threatening Johnson or her mother just before the stabbing.
The parties then discussed the scope of defense witness Iesha Wood's testimony. Wood was Johnson's longtime friend and former roommate. The court ruled that Wood could impeach Gale on certain issues and could testify about Johnson's fear of Gale.
Wood said that Gale and Johnson had their good times and their "iffy times." 6 RP at 15. When Gale took a spare key to the apartment Wood shared with Johnson, Johnson changed the locks because she did not want Gale alone in the apartment. Gale had stolen from Wood and Johnson in the past and did not have his own key to the apartment. Johnson loved Gale but was afraid of him and concerned for her life when he was on drugs, which was about 85 percent of the time.
Johnson testified that she and Gale started dating when she was 16 and he was 18 and that everything was fine for a few years until he started going in and out of jail. In 2003, Gale went to jail for assault "or something." 6 RP at 36. Johnson admitted that of "all the times he [had] been incarcerated," she had visited him only twice, but they did have frequent phone calls, and she changed her phone number four times to discourage them. 6 RP at 53-54. She always let him back into her life, though, after his release from custody. Johnson thought she could save him and get him "to this right path," but he "just became more obsessive over me." 6 RP at 55. She had to call him from work at certain times to check in, and he took her car without permission. She took care of him, but he never took care of her.
When he was on drugs, he was verbally and physically abusive and controlling, and she recounted an incident when she asked him a question and he hit her, and other times when he took her money. During the last few years she often feared Gale because he was always on drugs. When she threatened to call the police, he said he did not care if he went to jail and would just come back and find her. She tried to end the relationship several times, without success. "If I call the police, he don't care. He been in and out of jail for six years now. . . . He did so much. Threatening me. Thinking he had control over me and I wanted him just to leave me alone." 6 RP at 112. Although she could show the jury "no wounds," he would have "messed with" her if she had stayed with him. 6 RP at 112.
Johnson testified that on the day of the stabbing, she came home after working the night shift and slept until early afternoon. When she awoke, she discovered that Gale had taken her keys and her car. She called his cell phone repeatedly, and after about an hour, he returned her car. She said she wanted to end the relationship and had his clothes packed by the door. Gale got angry, threatened her and her mother, and refused to return her car keys. She denied finding letters from another woman he was seeing.
The two went to cash a check and drop off Gale's clothing, and Johnson got control of the car. When she was driving, Gale hopped out of the car with her keys and purse. He got back in and gave her the keys but not the purse. He changed the gears, covered her eyes briefly, threatened her, and spat in her face. He put the car in park, took her purse and keys a second time, and threatened her and her mother. Johnson said Gale was out of control because he was high on drugs. When asked if she was worried that he would harm her, Johnson replied, "Yes. I — I mean, I was in a bad situation, and I just wanted to get out of it." 6 RP at 82-83. She explained that she kept a butcher knife in her car for protection: "From just him, his lifestyle, you know. Like I said, I — I got myself in a bad situation, so it was protection from his lifestyle. You know, his so-called, you know — I guess his girl friends, I guess you can say. Just all type of negative imaging." 6 RP at 84.
Johnson testified that she had not meant to hurt Gale, but that she stabbed him because she saw no other way to get her keys and get away. On cross examination, the State pointed out that after stating that Gale took the keys when he got out of the car, she said she followed him in her car. Johnson denied having the keys when she stabbed him. When asked to define how he was threatening her, she replied, "He would just threaten me with words. `Bitch.' You know, `I don't care.' I mean, `You're not going anywhere. You're with me forever.' He was just threatening. Like, `Ha, ha, this is' —." 6 RP at 108. She later elaborated that Gale told her, "`You're never gonna leave me. You can't hide forever. You know, bitch, you know I got a copy of all your keys hidden somewhere. Bitch, I know where your mom live at.'" 6 RP at 124. On redirect, she testified that she feared for her own and her mother's safety: "it was either gonna be him or me, and I'm not talking as in someone dying or anything, but just — the relationship was just not right." 6 RP at 128. On re-cross, she stated that although she did not tell the arresting officer that she stabbed Gale because she feared for her life, she did in fact fear for her life when the stabbing occurred.
The trial court instructed the jury on the lesser included offense of second degree assault and also gave the jury two self-defense instructions. The jury found Johnson guilty of second degree assault while armed with a deadly weapon, and the court imposed a standard range sentence.
ANALYSIS
A. Right to Present a Defense
Johnson argues initially that the trial court's evidentiary rulings deprived her of her constitutional right to present a defense.
The Sixth Amendment to the United States Constitution and article I, section 22 of the state constitution grant criminal defendants the right to present testimony in their defense. State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983). The right to offer testimony of witnesses, and to compel their attendance, if necessary, is the right to present a defense, "the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004); see also Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987) (criminal defendants have the right to put before a jury evidence that might influence the determination of guilt).
Johnson's theory at trial was that she stabbed Gale in self-defense. If a person acts with a reasonable belief that he is about to be injured, and uses necessary force to protect himself, he is acting in self-defense. State v. Bland, 128 Wn. App. 511, 514, 116 P.3d 428 (2005). The self-defense justification must be evaluated from the defendant's point of view as conditions appeared to her at the time of the act. State v. Allery, 101 Wn.2d 591, 594, 682 P.2d 312 (1984). The jury must place itself in the defendant's shoes and judge the legitimacy of her act in light of all that she knew at the time. Allery, 101 Wn.2d at 594. The jury then uses this information to determine what a reasonably prudent person similarly situated would have done. State v. Wanrow, 88 Wn.2d 221, 236, 559 P.2d 548 (1977). Johnson contends that the trial court erroneously excluded evidence of Gale's past abuse, control and manipulation of her, evidence of how their relationship affected her, and evidence of her knowledge of his criminal past and how that increased her fear. Johnson contends that this evidence was material and relevant to her self-defense claim and that its exclusion deprived her of her constitutional right to present a defense.
1. Ruling on Motions in Limine
Johnson faults the trial court's ruling on the State's motions in limine. We review a trial court's ruling on a motion in limine for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). An abuse of discretion exists where no reasonable person would take the trial court's position. State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979).
The State sought to exclude evidence of Gale's prior domestic violence convictions, his history of drug use, and any evidence of prior domestic violence against Johnson. The State acknowledged, however, that "[i]f the defendant claims self-defense, evidence of alleged domestic violence by Gale may become relevant and the defendant may call Gale in her case." Clerk's Papers (CP) at 22.
After informing the court that his client would claim self-defense, defense counsel argued that Johnson was aware of Gale's drug use and other misconduct and that he should be able to prove specific instances of misconduct to show why she believed that if she did contact the police, they could not guarantee her safety. The State responded that evidence of Gale's criminal convictions, none of which concerned Johnson, was irrelevant to her self-defense claim.
The trial court ruled that most of Gale's criminal history, his past drug usage, and his prior bad acts, including evidence that he had assaulted or threatened Johnson, was excluded until the court ruled otherwise in a hearing outside the jury's presence.
The court ruled admissible Gale's convictions for second degree possession of stolen property and third degree theft.
A defendant who does not seek a final ruling on a motion in limine after a court issues a tentative ruling waives any objection to the exclusion of the evidence. State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43 (1994). Thus, Johnson waived any challenge to the court's ruling excluding evidence of Gale's prior domestic violence convictions, since counsel never again specifically referred to those convictions. Counsel did attempt to question Gale about his prior altercations with Johnson, but when the State objected, the court upheld its earlier ruling:
They included two gross misdemeanors committed in 2002 (assault and theft) and two committed in 2003 (assault 4 and violation of a no-contact order).
We have had no testimony from anyone regarding self-defense. Therefore, it is improper to ask this gentleman any questions regarding prior assaultive behavior or threatened assaultive behavior between this defendant and this witness, and until such time that there is evidence of self-defense, I'm going to exclude it, and that will be the ruling of the court, and the same will be true with any evidence of any other prior bad acts on the part of this witness[. Such acts are] excluded at this time since they have not been shown to be relevant for any purpose other than to discredit this witness, which is not proper.
5 RP at 85. Evidence of specific acts of conduct is inadmissible to prove the character of the person and that the person acted in conformity with that character. State v. Bell, 60 Wn. App. 561, 564, 805 P.2d 815 (1991). While this rule is modified somewhat where self-defense is at issue, Johnson had presented no evidence of self-defense when Gale testified. Nor did she make an offer of proof during Gale's testimony as to what evidence of self-defense she would offer.
Again, the trial court's ruling was tentative, disallowing evidence of Gale's misconduct only until it became relevant because of some evidence that Johnson acted in self-defense. The trial court did not abuse its discretion in so ruling.
The trial court similarly declined to allow Wood to testify whether she ever saw marks on Johnson. The court did allow Johnson, however, to testify that Gale verbally and physically abused her, and she described one incident in which he struck her. See 5D K. Tegland, Courtroom Handbook on Washington Evidence, at 237 (2007) (victim's prior misconduct admissible to show defendant had reasonable apprehension of danger in self-defense case).
In fact, most of the evidence that the trial court excluded in its initial ruling on the motions in limine was admitted during Johnson's testimony. Although Gale's specific domestic violence offenses were not identified, the jury was informed that he had been in and out of jail several times, at least once for "assault or something," and that being in custody had little effect on his behavior. Thus, without identifying any particular offenses, the purpose for which the defendant sought to admit Gale's criminal record was satisfied: the jury was made aware that Gale had been in and out of jail and that no matter what he did, he never seemed to receive effective punishment, and Johnson believed it was pointless to contact the police to protect her safety. The jury also heard ample evidence about Gale's drug use. We find no abuse of discretion in the trial court's ruling regarding the State's motions in limine and note that most of the evidence the defense sought was admitted despite its failure to seek a final ruling.
2. Ruling Restricting Iesha Wood's Testimony
The State objected to Wood's proposed testimony that Gale had belittled and verbally abused Johnson in the past. Defense counsel countered that Wood had grown up with Gale and Johnson and could impeach Gale's characterization of his relationship with Johnson and also provide some background information about the relationship. The court ruled that, although it would not allow any testimony regarding specific acts of misconduct, it would allow Wood to testify as to her personal knowledge that Johnson feared Gale. When defense counsel added that he wanted Wood to testify that Johnson always accommodated Gale and did whatever he wanted, the court ruled that such testimony was not relevant to self-defense.
Wood testified that Johnson changed the locks to keep Gale out and that Gale did not have his own key because he stole from them. He took Johnson's car without her permission, and Johnson paid all the bills. She added that Johnson was concerned for her life when Gale was on drugs and tried to kick him out. Wood was not allowed to answer whether she had ever seen any marks on Johnson, whether Johnson's attitude had changed during her relationship with Gale, or whether Gale had broken into Johnson's apartment. She did testify that Johnson loved Gale and would go running whenever he needed help.
The trial court did not abuse its discretion in ruling that Wood could describe her observations of Johnson and how Johnson feared Gale but not about specific acts of misconduct on Gale's part. See State v. Hutchinson, 135 Wn.2d 863, 886, 959 P.2d 1061 (1998) (in self-defense cases, witnesses may testify to victim's reputation for having violent disposition but not to specific acts of violence). Moreover, the bulk of the evidence that the court excluded during Wood's testimony was admitted when Johnson testified. Johnson was allowed to testify that Gale had verbally and physically assaulted her, and she described one incident where he struck her, even though she admitted that she could not show any wounds to the jury. She also testified that Gale became abusive and controlling when he used drugs, which was most of the time, but she admitted that she still cared for him.
3. Ruling on Johnson's Testimony
Finally, Johnson complains about the court's restrictions on her own testimony. She was allowed to testify that Gale contacted her frequently at work, but she was not allowed to explain why or to state why she was concerned about her job when she was dating Gale. She did explain, however, that she had to call him when she was at work. "[W]hen I was working, if I didn't call him at a certain time, he would call me and he was like, `Well, if you don't call me, I'm going to come to your job.' You know, I had to check in." She added that he did come by her place of employment. 6 RP at 50.
Johnson also asserts that the court should have allowed her to answer her attorney's question whether she ever got herself into any "difficult situations" when she dated Gale. 6 RP at 43. The court sustained the objection on the ground that the question was vague. When counsel became more specific and attempted to question Johnson about a 2003 shoplifting incident, the State objected and requested a sidebar conference. The State explained that, while the shoplifting conviction alone was admissible under ER 609, the circumstances behind it were not, and it was those circumstances that the defense sought to introduce. The defense confirmed this, stating that Johnson had shoplifted an outfit for Gale after he pressured her to get it for him. The court ruled that any testimony that Johnson shoplifted in 2003 to please Gale was not relevant to show that she acted in self-defense in 2005. Johnson contends that she thus was denied the opportunity to show how Gale controlled her.
Again, we find that the trial court did not abuse its discretion in excluding evidence of Johnson's motive for the 2003 shoplifting. See State v. Markle, 118 Wn.2d 424, 438, 823 P.2d 1101 (1992) (trial court's ruling regarding the admissibility of evidence may be reversed only upon a manifest abuse of discretion). This incident was fairly remote in time to the stabbing, and the court allowed other testimony that showed Gale's control over Johnson.
Finally, Johnson contends that she was not allowed to say what threats prompted her decision to grab the knife and stab Gale. Although the court initially sustained the State's hearsay objection when Johnson attempted to describe Gale's threats, it ultimately allowed her to testify regarding the content of those threats. This claim of error lacks merit.
The sum of Johnson's argument on appeal is that the trial court excluded evidence of Gale's past abuse, control, and manipulation of her. She contends that the court also excluded evidence of how the relationship impacted her as well as evidence of her knowledge of his criminal past and how that increased her fear. Johnson asserts that this evidence was relevant to both the determination of whether she actually feared Gale on the night she stabbed him and whether that fear was objectively reasonable. According to Johnson, it was only with that evidence that the jury could fully and properly evaluate her self-defense claim, and the trial court erred in excluding it.
The argument ignores the trial court's rulings admitting considerable evidence of Gale's abuse, control, and manipulation of Johnson, as well as evidence of her knowledge of his criminal past. Except for the 2003 shoplifting incident, Johnson did not at trial and does not now identify specific instances of abuse, control, or manipulation that the trial court erred in excluding. Johnson's testimony revealed how the relationship affected her and how and why she feared Gale. We are satisfied that any trial court error in excluding evidence of specific incidents of Gale's misconduct was harmless.
In view of this, Johnson's claim that her counsel was ineffective in not persuading the trial court to admit additional misconduct evidence also fails; she cannot show that counsel's failure, if any, prejudiced her. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Johnson also argues that counsel was ineffective for not offering expert testimony on battered woman syndrome. The record before us is not sufficient for us to consider the claim. The record does show that defense counsel obtained a continuance so Johnson could be evaluated for battered woman syndrome. We have, however, no evidence of whether she was evaluated or what the expert concluded. Johnson must raise the issue by Personal Restraint Petition. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
B. Prosecutorial Misconduct
Johnson argues next that the prosecuting attorney committed misconduct during closing argument. Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Absent a proper objection and a request for a curative instruction, the defendant waives any issue of misconduct unless the comment was so flagrant or ill intentioned that an instruction would not have cured the prejudice. State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978). We review a prosecuting attorney's allegedly improper remarks in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994). In determining whether prosecutorial misconduct occurred, we first consider whether the prosecutor's comments were improper. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). If we find the statements improper, we then ask whether there is a substantial likelihood that they affected the jury. Reed, 102 Wn.2d at 145.
Johnson's trial attorney objected to none of the now-challenged statements.
1. The Lack of Self-Defense Evidence
Johnson contends that the prosecuting attorney infringed on her right to present a defense when he argued that the evidence did not support her self-defense claim. She points to his statements that her self-defense claim "really just doesn't exist," that it did not fit with what the jury heard, that her testimony that she had to stab Gale to get away from the relationship was unbelievable, and that "there just isn't any evidence that would support self-defense," among others. 7 RP at 25-26. Johnson argues that these statements constituted misconduct because the State's motions in limine had caused the trial court to exclude evidence critical to her self-defense claim. As support, she cites State v. Kassahun, 78 Wn. App. 938, 900 P.2d 1109 (1995).
In Kassahun, the State successfully moved to preclude the defendant from discovering objective evidence of the victim's gang affiliation and activities, as well as that of some of the witnesses present when the victim was killed. Kassahun, 78 Wn. App. at 952. Having prevailed on that motion, the prosecutor committed misconduct by implying in closing argument that the defendant was lying because he failed to offer objective evidence to support his belief that gangs were overrunning his business. Kassahun, 78 Wn. App. at 952.
Kassahun is distinguishable. Here, the State did not succeed in excluding critical evidence regarding Johnson's self-defense claim, and there were significant contradictions between her testimony regarding the stabbing and that of the eyewitnesses. Furthermore, the State had to disprove self-defense to prove that Johnson acted unlawfully. State v. Acosta, 101 Wn.2d 612, 616, 683 P.2d 1069 (1984). In any event, it is not misconduct to argue that the evidence does not support the defense theory. Russell, 125 Wn.2d at 87.
2. The State's Witnesses Were Lying
Johnson next contends that the State committed misconduct in arguing that the jury had to find that its witnesses were lying to acquit her. (To provide some context, statements in addition to those to which Johnson objects are cited below, with the allegedly improper argument in italics type.)
Instruction No. 1 tells you . . . the jurors, as individuals and collectively, decide the credibility of the witnesses, and one of the main things you are going to have to do in this case is decide did you believe her when she testified. Who told you the truth? Gloria Greenwood, Linda Bell, Kindra Bell, Kjelsi Clark, Dr. Bell or the defendant? Does this defendant's story make sense?
What did the State's witnesses tell you? She said they said that the defendant tried to run over Parrish Gale with a car right before the stabbing. The defendant told you, "Never did that."
The State's witnesses told you that the purse was on the sidewalk. Kindra Bell came out of her house and was actually putting things into the purse when Parrish Gale came back. The defendant says, "No, Parrish Gale had the purse."
7 RP at 22-23. The prosecuting attorney continued to outline the ways in which Johnson's testimony contradicted that of the State's witnesses, and then argued as follows:
Does she have a motive to be untruthful? Do the State's witnesses have a motive to be untruthful to you?
Gloria Greenwood. She doesn't know Parrish Gale, she doesn't know Ebony Johnson. She doesn't really care about either one of them. She has no stake in this fight. She's just here to tell you what she saw this night.
Same thing goes for Linda Bell. Same thing goes for Kindra Bell. Same thing goes for Kjelsi Clark, and the same thing goes for Dr. Bell.
None of them have an interest in this case. They are just here to tell you what they saw that night, and contrast that with the defendant who is very angry with Parrish Gale and who has been charged with a crime in this case.
The State's witnesses had no motive to lie to you. They came in here. They told you the truth. They told you what they saw, and remember that they wrote down what they saw. . . . [T]hey actually had documentation that they wrote down minutes after this happened describing what they saw.
. . . when you compare [Johnson's] testimony with what you know the facts are, you will find that her testimony was not credible and that she didn't tell you the truth about trying to run over Mr. Gale. She didn't tell you the truth about leaving her purse to chase after Mr. Gale. She didn't tell you the truth about driving back to the street corner before the stabbing. She didn't tell you the truth about her keys.
7 RP at 24-25. Johnson next complains of these statements during the rebuttal argument:
As you listen to counsel's argument it would appear at least from the defense perspective there was a grand conspiracy in place here where Linda Bell, Kindra Bell, Gloria Greenwood, Kjelsi Clark, all these people who were eyewitnesses to this event somehow had it in for the defendant and were trying to slant their handwritten statements to the police and their testimony here in court to make it look like she did something bad, and that's something for you to consider. But based on the evidence you heard, that's ridiculous.
7 RP at 59.
Johnson complains that further misconduct occurred when the prosecuting attorney responded to defense counsel's suggestion that the State's witnesses had "colluded" so they could all write down the same thing in their statements. 7 RP at 59. "[T]hey told you [what] happened. Not because they got it out for the defendant who they never met in their life. They told you that because it's what they saw. It's the truth." 7 RP at 60. The State also contended that the defense was suggesting that the eyewitnesses were somehow fabricating or embellishing their testimony. "But ask yourself what possible motive do they have to do that? I'm confident when you do that you are going to find they don't have any reason to make this up." 7 RP at 65. The prosecuting attorney added that the witnesses "came in here, told you what they saw and what they remembered because it was the truth." 7 RP at 66. Finally, the prosecuting attorney addressed the suggestion that one of the eyewitnesses had a motive to lie. " [T]o say that she's not telling you the truth because she says she didn't have her radio on doesn't make sense." 7 RP at 67.
During closing argument, the prosecuting attorney may draw inferences from the evidence as to why the jury would want to believe one witness over another. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). While the State may not argue that to acquit the defendant, the jury needs to believe that its witnesses were lying, a prosecuting attorney may argue that to believe the defendant, the jury would need to believe that the State's witnesses were mistaken. State v. Wright, 76 Wn. App. 811, 824, 888 P.2d 1214 (1995). A jury need only find that the State has not proven its case beyond a reasonable doubt to acquit a defendant. Wright, 76 Wn. App. at 825. A jury does not need to resolve which, if any, of the witnesses are telling the truth to conclude that one version is more credible or accurate than another. Wright, 76 Wn. App. at 825. Moreover, counsel is entitled to comment on a witness's veracity during closing argument, or to invite the jury to make reasonable inferences from the evidence, so long as counsel does not express a personal opinion. State v. Rivers, 96 Wn. App. 672, 674-75, 981 P.2d 16 (1999).
Johnson contends that in the arguments set forth in italics type above, the prosecuting attorney misstated the jury's role by stating that it had to figure out whether Johnson or the State's witnesses were telling the truth. She maintains that "[h]e told the jury that they would have to find [the prosecution's witnesses] were lying, that they had a motive to do so, and further, indirectly, that they were effectively committing the uncharged crime of perjury, before the jury could acquit." Br. of Appellant at 39.
Although the prosecuting attorney did not state that the jury would have to find that its witnesses were lying to acquit Johnson, he certainly argued that the jury was to determine which witnesses were telling the truth. Instead of objecting to these statements, the defense embraced this theme in its own closing argument:
. . . Now, at the beginning of this case I told you that what we were going to be doing is we are going on a search for the truth. The truth isn't always what we expect it to be, nor is it what we want it to be.
Sometimes the truth hides from us, and in this case, the truth — well, the truth was hidden quite a bit.
7 RP at 29.
. . . This is not a matter of the truth whatsoever. Because if the State was interested in the truth, they would have put Parrish Gale on the stand. . . . Is this about the truth or is this about the State proving their case? There's a big difference between proving your case and what the truth is, and that's what your job is. It's your job to determine what the truth of the matter is.
7 RP at 45.
What is the truth over here? Why did the State not want to call Parrish Gale as their main witness?
7 RP at 46.
So even if we are to believe Parrish that all he had was marijuana because he didn't get a chance to do anything else, then could he still have been aggressive towards my client? Towards Ebony? Ebony who testified that she had never seen Parrish act the way that he was acting on the night that this happened? What has the ring of truth to it? What has the ring of truth to it?
7 RP at 50-51.
The State's rebuttal arguments were a reply to these remarks and thus not grounds for reversal. See State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985) (improper remarks of prosecutor are not grounds for reversal where they are in reply to defense counsel's statements unless they are so prejudicial that an instruction would not cure them). And we find no impropriety in the prosecutor's initial references to the jury's need to sort out which witnesses were telling the truth; the prosecutor was simply arguing that the jury had to evaluate the credibility of witnesses, not suggesting that the jury had to find that the State's witnesses were lying to acquit the defendant. Moreover, an instruction could easily have cured any possible error. See State v. Barrow, 60 Wn. App. 869, 877-79, 809 P.2d 209 (1991) (prosecutor's argument that jury would have to believe officers were lying to acquit was not so inflammatory that reversal was required).
3. Inciting the Jury's Passions and Prejudices
Johnson further argues that the prosecuting attorney committed misconduct by stating that the defense called Gale as a witness to distract the jury and to "trash" him, and by arguing that the jurors had to convict Johnson to uphold their oaths. She also claims that the prosecuting attorney was attempting to improperly incite the jury's emotions against the defense while criticizing the defense for asking the jury to base its decision on emotion. Because all the comments at issue were made in the State's rebuttal argument, we quote the defense argument that prompted them first.
What is the truth over here? Why did the State not want to call Parrish Gale as their main witness? After all, Parrish Gale is the quote, unquote, victim over here. Oh, sure, I can feel sorry for Parrish Gale because he got stabbed in the back. I mean, it must have been a big inconvenience for him to have a girlfriend that's supporting him, that he can take advantage of and then have her kick him out of her house.
Oh, it can be an inconvenience for him to have a girlfriend put up with everything that he's put her through, only to be told that, "Well, you know, this is it. You need to bring my car back. It's over."
Is it an inconvenience to Parrish Gale? Is Parrish Gale truly an innocent person who appeared over here to testify as to how he didn't need Ebony Johnson?
7 RP at 46.
All he cares about is who is going to take care of him? Who is going to buy him his next outfit? Who is going to buy him his next pair of shoes that he wants? Who is going to provide a house for him? A roof for him when he needs to go to sleep? Who is going to let him come over to their apartment so he can shower up? Basically all Parrish cares about is who he can leach off of. Who he can just use and abuse.
7 RP at 47.
You know, this is one of those cases where it's hard to stay — it's hard to feel sorry for Parrish.
7 RP at 54.
The State responded as follows:
Counsel says, "Why didn't the State call Parrish Gale?" Certainly the State could have called him, but there's one reason and one reason only that the defense called Parrish Gale. That wasn't to shed any more light on what happened on April 9th, 2005. It really doesn't add anything to the case.
They called him for one reason and one reason only, and that's to put him up there, trash his character and get out all the bad things about him to distract you from what actually happened on April 9th, 2005.
He was up there for more than an hour before a question was ever asked of him about what happened on April 9th, 2005.
He has the worst memory of all the witnesses who were there. He was using drugs. He got stabbed that night. He was on all kinds of medications afterwards. He never had the opportunity to fill out a handwritten statement. He's got the worst memory of anybody out there.
He was not called in this case to help you decide whether Ebony Johnson . . . stabbed [Gale] in self-defense or whether it was with intent to cause great bodily harm. He was called so they could put him up there for hours and get out all the horrible things he's done in his life to distract you from determining what the real truth in this case is.
7 RP at 69-70.
After discussing the facts and the self-defense instruction, the prosecuting attorney continued as follows:
This is not a case of self-defense. The defendant has put that as an issue for you, but that's not why they are really claiming self-defense. They are claiming self-defense so they have something to ask you to hang your hat on.
The real defense in this case is Parrish Gale is a crappy boyfriend, a lame person, an undesirable person and why should you care that he got stabbed? That's the real defense in this case. That's why he was called. That's why counsel spent so many hours examining his client and Iesha and Parrish Gale about everything except for April 9th, 2005.
When you took your oath as jurors you all took a promise to follow the law, and the law in this case set forth in Instruction No. 1 . . . says you are officers of the court. You must not let your emotions overcome your rationale [sic] thought process.
Reach your decision based on the facts proved to you, not the defendant crying or the fact that you may not like Parrish Gale or you maybe feel sorry for her that she stabbed him in the back. You must reach your decision based on the facts and the law, not on sympathy, prejudice or personal preference, and that's the true defense in this case.
There is no self-defense. It just doesn't exist. The real defense in this case is make the jury hate Parrish Gale, feel sorry for my client and excuse her conduct.
You took an oath as jurors and you all promised in voir dire that you would follow the law and that's all the State is asking you to do in this case is return a verdict that represents the truth.
There may be reasons to feel sorry for the defendant, but that doesn't excuse what she did. Those are things that the judge takes into consideration at sentencing. Not a reason to excuse what she did when she stabbed Parrish Gale.
When we first started this case at the very beginning I asked all of you would it be important for you to return a verdict that represents the truth, and you all said yes.
When you took your oath as jurors you all promised to return a true verdict. You all promised that you would follow the law, which includes deciding the case on the facts, not sympathy and prejudice and emotion. That's all that the State is asking you to do in this case.
7 RP at 73-75.
There's no question in this case that she used a deadly weapon. The question to you is are you going to decide the case based on the facts and follow the law and find her guilty or excuse her conduct or water down the verdict with assault in the second degree because you don't like Parrish Gale or you feel sorry for her?
7 RP at 75-76.
As an advocate, the prosecuting attorney is entitled to make a fair response to the defense counsel's arguments. Russell, 125 Wn.2d at 87. It is a prosecuting attorney's duty, however, to seek a verdict free of prejudice and based on reason. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420 (1993). Comments calculated to appeal to the jury's passion and prejudice and to encourage it to render a verdict based on facts not in evidence are improper. State v. Pastrana, 94 Wn. App. 463, 478, 972 P.2d 557 (1999).
Johnson argues that the prosecutor's arguments regarding Gale were clearly designed to incite the jurors emotionally against her and to denigrate her and her attorney. She also contends that the prosecutor improperly suggested that defense counsel was trying to fool the jury and distract it from its duty. See Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983) (comments indicating that counsel is retained to "lie and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client's involvement with the alleged crimes" are serious misconduct). She maintains that there could be no other reason for telling the jury that counsel only called the victim to "trash his character" and "distract" the jurors from "what actually happened." She further argues that the misconduct was not erased by the prosecuting attorney's declaration that the jury should not decide the case on "sympathy, prejudice or personal preference." According to Johnson, the prosecutor was not correctly telling the jury that emotion should play no part in its decision. Rather, he was trying to ensure that the emotion upon which the jury relied was that which he had incited against the defense.
In Bruno, the prosecuting attorney argued in closing that a defense witness's repudiation of earlier pro-prosecution statements was due to defense counsel's unethical and perhaps illegal actions. Bruno, 721 F.2d at 1194. He "lunged into a vicious attack on the accused's claims of innocence by openly hinting to the jury that the fact that the accused hired counsel was in some way probative of the defendant's guilt." Bruno, 721 F.2d at 1194. The court quoted part of the argument: "`There is a Judas syndrome at work here and the criminal justice system is the cathedral. And it's been a terrible sight to see it sullied the way it has been during this trial with the most blatant lies. . . . the defense is the Judas in this case[.]'" Bruno, 721 F.2d at 1194 n. 3. The State's comments here do not compare with the argument in Bruno.
Johnson also cites three Washington cases to support her argument that the State attempted to incite the jury's passions against her and her attorney. State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988); State v. Powell, 62 Wn. App. 914, 816 P.2d 86 (1991); and Echevarria, 71 Wn. App. 595. In Belgarde, the prosecutor compared the American Indian Movement (AIM), an organization with which the defendant was affiliated, to "butchers . . . [that] kill indiscriminately" and to a "deadly group of madmen." Belgarde, 110 Wn.2d at 508. These statements were inflammatory, as they encouraged the jury to return a verdict based on the defendant's association with AIM rather than the evidence, and they mandated a retrial. Belgarde, 110 Wn.2d at 508-10. In Powell, the defendant was charged with first degree child molestation, and the State argued in closing that acquittal would send a message that children who reported sexual abuse would not be believed, thereby "declaring open season on children." Powell, 62 Wn. App. at 918. This argument denied the defendant a fair trial. Powell, 62 Wn. App. at 919. In Echevarria, a drug case, the prosecuting attorney made repeated references to the war on drugs and other wars this country has waged, and Division One found these remarks grounds for reversal. Echevarria, 71 Wn. App. at 598-99.
The State responds that the remarks concerning Gale were a legitimate response to the defense attorney's closing argument in which he attacked Gale's character. The prosecuting attorney's statements are distinguishable from those found prejudicial in Belgarde, Powell, and Echevarria, and do not appear designed to inappropriately incite the jury's passions and prejudices.
With regard to the prosecuting attorney's admonition to the jury to adhere to its oath, Johnson finds support for her claim of misconduct in State v. Coleman, 74 Wn. App. 835, 876 P.2d 458 (1994). In Coleman, both attorneys argued in closing that the issue was whether a theft or robbery had occurred. The prosecuting attorney ended his rebuttal argument with these comments:
It is your job to apply the facts to the law, and we cannot second guess you, and will not second guess you, and if you determine that the only thing that happened here was a theft then that is your judgment. And you are entitled to make it, but I would suggest to you that to do so you have to do two things. And one is to ignore the actual evidence in front of you, and the second is thereby to violate your [oa]th as jurors.
Coleman, 74 Wn. App. at 838.
In analyzing these comments, Division One noted that a prosecutor does not commit misconduct by arguing that jurors would have to disregard the evidence to reach a certain result or that to disregard evidence would violate their oath. Coleman, 74 Wn. App. at 838. While the argument quoted above could be so interpreted, it also could be construed as telling the jury that it would violate its oath if it disagreed with the State's theory of the evidence. Coleman, 74 Wn. App. at 838-39. Under this construction, the argument would be improper. Because there was a substantial risk that the comments could be so construed, the court treated the comments as improper. Coleman, 74 Wn. App. at 839; see also United States v. Young, 470 U.S. 1, 105 S. Ct 1038, 84 L. Ed. 2d 1 (1985) (prosecutor committed misconduct in arguing that he believed that the defendant was guilty and that the jury should "do its job"). Coleman had preserved the issue by objecting and moving for a mistrial, and the misconduct required reversal if there was a substantial likelihood that it had affected the verdict. Coleman, 74 Wn. App. at 839. Because this was the only incident of misconduct, and because the prosecuting attorney had preceded the improper comments with her statement that "we cannot second guess you," the court did not find a substantial likelihood that the misconduct affected the verdict. Coleman, 74 Wn. App. at 841.
During argument here, the prosecuting attorney urged the jury three times to adhere to its oath and follow the law, and he added once that the State was asking the jury to return a verdict that represented the truth. When viewed as a whole, these comments do not suggest that the jury would violate its oath if it acquitted Johnson. Even if the request to return a truthful verdict was inappropriate, Johnson did not object and, thus, waived any possible error. See Charlton, 90 Wn.2d at 661 (absent proper objection and request for curative instruction, issue of misconduct waived unless comment is so flagrant that prejudice could not have been cured by instruction).
Johnson argues in addition that if we find that the prejudice caused by any of the prosecutorial misconduct alleged above could have been cured with a proper instruction, we should reverse based on counsel's ineffectiveness in failing to object and request such an instruction. We see no need for reversal, as we see no likelihood that a curative instruction regarding any of the prosecuting attorney's statements would have changed the trial's outcome. See McFarland, 127 Wn.2d at 335 (prejudice prong of ineffective assistance test is established if there is a reasonable probability that, except for counsel's errors, the result of the proceeding would have differed).
4. Self-Defense Instruction
Johnson claims that the trial court erroneously instructed the jury on self-defense. At defense counsel's request, the trial court gave the jury two self-defense instructions. Instruction 12, based on WPIC 17.02, provided as follows:
It is a defense to a charge of Assault in the First Degree and Assault in the Second Degree that the force used was lawful as defined in this instruction.
The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that she is about to be injured in preventing or attempting to prevent an offense against the person and when the force is not more than is necessary.
The person using the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of the incident.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
CP at 113. Instruction 13 was based on WPIC 17.04, with one variation:
A person is entitled to act on appearances in defending herself, if that person believes in good faith and on reasonable grounds that she is in actual danger of great personal injury, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
CP at 114. The variation is that WPIC 17.04 refers to a person being in actual danger of "great bodily harm" instead of "great personal injury." 11 Washington Pattern Jury Instructions: Criminal 1.00-55.06, at 203 (1994) (WPIC). Defense counsel proposed the modification to comply with State v. Walden, 131 Wn.2d 469, 932 P.2d 1237 (1997). Walden was an assault case in which the Supreme Court advocated in dictum the use of the phrase "great personal injury" instead of "great bodily harm" in a different self-defense instruction. Walden, 131 Wn.2d at 475 n. 3.
Johnson claims that Instruction 13 was improperly worded and that her attorney was ineffective in proposing it. Jury instructions must "`more than adequately'" inform the jury of the law on self-defense in order to pass appellate scrutiny. State v. Rodriguez, 121 Wn. App. 180, 182, 87 P.3d 1201 (2004) (quoting Walden, 131 Wn.2d at 473). "Read as a whole, the jury instructions must make the relevant legal standard manifestly apparent to the average juror." Walden, 131 Wn.2d at 473. A jury instruction misstating the law of self-defense amounts to an error of constitutional magnitude and is presumed prejudicial. State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996). The doctrine of invited error generally precludes review of a requested instruction, but it does not bar review of a claim of ineffective assistance of counsel based on such an instruction. State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999). Johnson makes a claim of ineffective assistance here.
Johnson bases her claim on Rodriguez and State v. L.B., 132 Wn. App. 948, 135 P.3d 508 (2006). In Rodriguez, Division Three found that counsel was ineffective in proposing a self-defense instruction based on WPIC 17.04, with its reference to "great bodily harm," in a first degree assault case. The finding of error was because the jury had also received an instruction defining "great bodily harm" as part of the first degree assault charge. Rodriguez, 121 Wn. App. at 185-86. "[S]tanding alone or with other instructions to this jury on the question of self-defense, [WPIC 17.04] would at least be innocuous and perhaps even an accurate statement of the law." Rodriguez, 121 Wn. App. at 185-86. But, as instructed, the jury was improperly required to find that the defendant was afraid of death or permanent injury at the victim's hands, and these particular instructions struck at the heart of his defense, i.e., that he was merely afraid of the victim. Rodriguez, 121 Wn. App. at 187.
In L.B., a fourth degree assault case, the court noted that the applicable standard for self-defense is set out in WPIC 17.02: "`The use of force upon or toward the person of another is lawful when used by a person who reasonably believes that he is about to be injured and when the force is not more than is necessary.'" L.B., 132 Wn. App. at 952 (quoting WPIC 17.02, at 196). The trial court, however, relied on WPIC 17.04 for the applicable standard. L.B., 132 Wn. App. at 952. Before 1994, WPIC 17.04 referred to injury, not to great bodily harm. In 1994, WPIC 17.04 was amended to state the law on apprehension of danger as set forth in State v. Miller, 141 Wash. 104, 105-06, 250 P. 645 (1926) and its progeny. L.B., 132 Wn. App. at 953. In doing so, the Washington Supreme Court Committee on Jury Instructions lifted language from Miller that referred to danger of great bodily harm (rather than danger of injury) and inserted it into WPIC 17.04. L.B., 132 Wn. App. at 953.
Division One concluded in L.B. that, as amended, WPIC 17.04 places too high of a standard for one who tries to defend himself against a danger less than great bodily harm but that still threatens injury. L.B., 132 Wn. App. at 953. "Where the defendant raises a defense of self-defense for use of non-deadly force, WPIC 17.04 is not an accurate statement of the law because it impermissibly restricts the jury from considering whether the defendant reasonably believed the battery at issue would result in mere injury." L.B., 132 Wn. App. at 953. Division One found use of the faulty instruction harmless, however, because the trial court found no threat of injury following the bench trial; it did not find only that there was no threat of "great bodily harm." L.B., 132 Wn. App. at 954. Because the trial court would have reached the same result and rejected the self-defense claim had the instruction been correctly worded, the misstated self-defense instruction was harmless beyond a reasonable doubt. L.B., 132 Wn. App. at 955.
Division Three cited L.B. with approval in State v. Woods, 138 Wn. App. 191, 156 P.3d 309, 314 (2007). The defendant in Woods was charged with third degree assault, and the court found that his attorney was ineffective for proposing a self-defense instruction based on WPIC 17.04. The defense was that the victim was the initial aggressor who struck the defendant with a hammer, and there were witnesses to support this theory. Thus, the jury could have found that the defendant reasonably believed that the victim was going to injure him, even if he did not expect great bodily harm. Woods, 156 P.3d at 314.
The defense theory in these cases was different from Johnson's, as was the type of force used. In Rodriguez, the defendant testified that he armed himself with a knife because he was afraid of the victim and accidentally stabbed him in the side as the two scuffled. Rodriguez, 121 Wn. App. at 183. Woods involved an altercation over money in which the defendant stabbed the victim in the shoulder after being threatened with a hammer, causing an injury that required three stitches. Woods, 156 P.3d at 311. In L.B., the defendant responded to an alleged verbal threat by striking the victim in the jaw with his fist. L.B., 132 Wn. App. at 950-51.
Johnson testified that she stabbed Gale because she feared for her life, and she arguably used deadly force in acting on her fear. See State v. Clarke, 61 Wn.2d 138, 142, 377 P.2d 449 (1962) (deadly force is force "capable of, and entails great risk of, killing"). The surgeon who removed the knife testified that Gale's wound could have been life threatening. Thus, the analysis in L.B. and Woods is inapplicable here because those cases involved non-deadly force. Moreover, unlike the cases cited above, defense counsel proposed an instruction requiring the jury to find that Johnson reasonably believed she was in danger of great personal injury, as opposed to great bodily harm. No definition of "great personal injury" was provided, but Johnson cannot now complain of that omission. See State v. Scott, 110 Wn.2d 682, 689, 757 P.2d 492 (1988). Consequently, defense counsel arguably avoided the pitfall identified in Rodriguez. In addition, even if the jury was reluctant to accept Johnson's statement, made late in her testimony, that she stabbed Gale because she feared for her life, her testimony amply supports the theory that she believed she needed to stab Gale to protect herself from great personal injury. We find no error in Instruction 13 under the facts presented, and no ineffective assistance based on its use at trial.
C. Statement of Additional Grounds
In her pro se statement of additional grounds, Johnson argues initially that the trial court improperly limited the evidence relevant to her claim of self-defense. This argument was raised by appellate counsel and need not be addressed further.
Her second argument is that the prosecuting attorney improperly contributed to the absence of potential defense witness Teesha Stinson. The record does not support this claim. Rather, it shows that defense counsel decided not to call Stinson because she had to go back to work and because he had decided that Wood was the better witness.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J. and PENOYAR, J., concur